More than 40 years after President Richard M. Nixon signed the Home Rule Act, legal experts in the District of Columbia are fighting about what the feds intended.
Federal appeals court judges listened to more than an hour of oral arguments Friday in the case pitting the District's executive branch against its legislative branch. It's round two of a legal battle launched in April.
U.S. Court of Appeals Judge Patricia A. Millett pressed a politically potent question for this time of year. Will the entire suit be "moot" after Nov. 4, when the city casts ballots for a new mayor and its first elected attorney general?
If the new administration chooses to comply with the local budget autonomy law signed by Mayor Vincent Gray in February 2013, and approved by 83 percent of voters two months later, there's "at least a possibility that what we have right now [might] no longer be what the courts call a case or controversy," said Walter Smith, executive director of DC Appleseed.
"The court could say, 'Well, the case is over,' dismiss the appeal and vacate the decision," Smith said in an interview after the arguments. As the legal architect behind the charter amendment, he supports the D.C. Council's appeal to require Gray and Chief Financial Officer Jeffrey S. DeWitt to comply with the law.
Budget autonomy referendum backers claim Congress provided a pathway for the District to amend the budget process via its charter. In court documents, lawyers for the D.C. Council cited House staff memos and notes from 1973 conference negotiations with the Senate to discern lawmaker's intentions. They noted that in 1984, Congress made it easier to amend the charter.
D.C. Attorney General Irvin B. Nathan counters that Capitol Hill "put it off limits" for the council to to change its budget process. Nathan insisted the panel go "back to the merits" and uphold U.S. District Judge Emmet G. Sullivan's May 19 ruling that the city does not have the right to spend its local revenues without seeking an annual appropriation from Congress. He wants "common sense" to prevail.
Both sides say they believe the District deserves budget autonomy, but the executive branch agree s with the House GOP and the Government Accountability Office : The city can't cut its own purse strings.
Democratic mayoral nominee Muriel Bowser and independent candidate David Catania are both members of the D.C. Council, which voted unanimously to adopt the local budget autonomy law. Bowser, Catania and Carol Schwartz — another independent challenger for mayor and a former councilmember — have all expressed support for budget autonomy.
Paul Zukerberg, an attorney general contender, attended Friday's arguments as a supporter of the D.C. Council. He told CQ Roll Call that, if elected, he would enforce the local budget autonomy law, but that might not be the end of the legal battle.
"There's also a provision that would require the appointment of independent counsel for Jeff DeWitt or the mayor if they had different opinions," Zukerberg said. "The CFO is independent so if he persisted there would still be an attorney representing him, so it wouldn't necessarily mean the case is over."
This hypothetical scenario is something Smith differed on. He said the CFO is still a member of the executive branch. A new attorney general's opinion may be "binding on every District of Columbia official," Smith said.
The appeals court has no set timeline to decide the appeal, but advocates of budget autonomy hope for a fresh start after Nov. 4.
DC Vote spokesman James Jones said he looks forward to having an elected attorney general who balances "the responsibility to uphold the law" with "viewing the people of the District as a client."
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